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THE REPUBLIC OF TRINIDAD & TOBAGO
IN THE HIGH COURT OF JUSTICE
Claim No. CV 2012-03515
IN THE MATTER OF THE SUCCESSION ACT CHAPTER 9:02
AND
IN THE MATTER OF AN APPLICATION OF KATHLEEN LUKE
BETWEEN
KATHLEEN LUKE
Claimant And
THE LEGAL PERSONAL REPRESENTATIVE
(of the Estate of Trevor Luke who died on 23rd February 2012)
First Defendant
JUDITH JOY SMITH BANFIELD
Second Defendant
PETROLEUM COMPANY OF TRINIDAD AND TOBAGO Third Defendant
BEFORE THE HONOURABLE MADAME JUSTICE JOAN CHARLES
Appearances:
For the Claimant: Mr. Ronnie Bissessar Instructed by Ms. Lisa Francis
For the Defendant: Mr. Kissoonlal Sinanan
Date of Delivery: 13th May 2019
JUDGMENT
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[1] The Claimant is the widow of Trevor Luke who died on 23rd February
2012 (“the deceased”).
[2] The Claimant’s claim1 is principally for declaratory relief that Petrotrin
pay the sum of $598,692.69 to her (Mrs. Luke) being 40% of the benefits
in the deceased’s pension plan with his employer, the Petroleum
Company of Trinidad and Tobago Ltd (Petrotrin) (“the Pension Plan”) on
the basis that the deceased did not make reasonable financial
provisions for her (Mrs. Luke) pursuant to Sections 95 and 96 of the
Succession Act Chapter 91:01.
[3] Mrs. Luke also sought a declaration that having regard to the agreement
between the parties’ attorneys at law in 2014 that there was a valid and
enforceable compromise between Mrs. Luke and Ms. Smith-Banfield for
the sum of $852,502.00 to be paid from the monies standing to the
Pension Plan to satisfy the deceased’s estate’s debts and liabilities.
[4] On 04th December 2012, Petrotrin advised that the total sum payable
from the Pension Plan was $1,496,731.72 which the company intended
to apportion to the deceased’s nominated beneficiaries as follows:-
(i) the defendant (Judith Joy Smith-Banfield) (“Ms. Smith-
Banfield”) (40%) - $598,692.69; and
(ii) the deceased’s estate (60%) - $879,421.94.
[5] In relation to the 60% share to be paid to the estate, Mrs. Luke, by
virtue of the provisions of Section 24(4) of the Administration of
Estates Act Chapter 9:01 is only entitled to a 1/2 share of the estate
or $439,910.97 with the two children of the marriage receiving the
remaining ½ share.
[6] In her amended defence and counterclaim, Ms. Smith-Banfield claimed
40% of the monies standing to the Pension Plan ($598,692.69) on the
1 Claim filed on 24 March 2016
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basis that she is the nominated beneficiary. The First Named Defendant
averred that the deceased did make reasonable provision for Mrs. Luke
and, in any event, there was no compromise between the parties’
attorneys at law by which she was bound.
Background Facts2
[7] On 19th April 1980 Mrs. Luke was married to the deceased; at all
material times Mrs. Luke was a retired managing clerk at Capital
Insurance Ltd who suffered from cervical spondylosis and left carpal
tunnel syndrome making her medically unfit to work3; the deceased was
an internal auditor at Petrotrin.
[8] There are two (2) children of the marriage, namely, Krissy Luke born on
18th December 1981 who is now 36 and Kyle Luke born on 22nd
November 1984 who is now 33 years old.
[9] In 1989 Mrs. Luke and the deceased jointly purchased the matrimonial
home situated at No. 184 Richard Lane, Gopaul Lands, Marabella in
their joint names. Thereafter, the parties lived in rented accommodation
while works were being carried out at the matrimonial home.
[10] In February 2011 the deceased left the rented accommodation and
moved to No. 152 Greenhill Avenue, Tarodale Gardens, Palmyra to live
with Ms. Smith-Banfield.
[11] On 29th April 2011 in a petition intituled SM-181 of 2011, Mrs. Luke
petitioned for divorce based on the deceased’s unreasonable behavior;
Mrs. Luke also filed an application for property settlement, a lump sum
and maintenance pending suit.
2 Witness Statement of the Claimant filed on 6 May 2016 3 as certified by Mr. Ian B Pierre, Specialist in Orthopaedic Surgery in a medical report dated 07th July 2011 exhibited as KL 4 to Mrs. Luke’s principal witness statement; p. 5 of Trial Bundle 1
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[12] In Mrs. Luke’s affidavit filed on 13th October 2011 in support of her
claims for property settlement, she exhibited a Petrotrin nomination
form dated 24th January 20114 certifying that the deceased had
nominated Ms. Smith-Banfield (whom he described as his cohabitant)
as beneficiary of 20% of the benefits of the Pension Plan with the
remaining sum being distributed to his children Krissy (37.5%), Kyle
(37.5%) and Mrs. Luke (5%). Subsequently, the deceased changed his
beneficiaries to reflect that Ms. Smith-Banfield will receive 40% and his
estate 60% of the benefits of the Pension Plan.
[13] On 12th January 2012, Gobin J granted a decree nisi in respect of Mrs.
Luke’s petition5.
Issues
(a) Whether there was an agreement between Mrs. Luke and Ms.
Smith-Banfield that the sum of $852,502.00 from the
Pension Plan will be paid to the estate to satisfy the estate’s
debts and liabilities with the balance being divided between
Mrs. Luke and Ms. Smith-Banfield as the court determines
and for this agreement to be enforced
(b) Whether Mrs. Luke is entitled to reasonable provisions
pursuant to sections 95 and 96 of the Succession Act
Chapter 9:02 and whether reasonable provision should be
made for her benefit from the benefits of the Pension Plan
4 pp. 70, 71 of the CB 5 p. 193 of the CB
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Submissions – Issue (a)
The Claimant
[14] Mrs. Luke submitted that the First Named Defendant Ms. Smith-
Banfield agreed that the sum of $852,502.00 comprising the debts and
liabilities of the deceased’s estate will be paid from the total Pension
Plan benefit of $1,465,703.246 (the said agreement); this debt comprise
inter alia the estate’s debts to:-
(i) Republic Bank Limited7;
(ii) RBC (Royal Bank) Trinidad and Tobago Limited8;
(iii) 50% of the debt owed to Ritchie Figaro9;
(iv) Bank of Baroda Ltd10; and
(v) arrears on orders dated 12th January 2012 and 26th July
2012
[15] The Claimant submitted further, that the said agreement was made
following discussions between her attorneys at law and Ms. Smith-
Banfield’s then attorney at law Mr. Dexter Bailey in a series of letters
referred to below.
[16] After the deduction of $852,502.00 for payment of the debts and
liabilities of the deceased’s estate, the sum of $613,201.24 remained.
[17] It is the Claimant’s case that no agreement was made between herself
and Ms. Smith-Banfield as to how the balance of $613,201.24 would be
shared. In her letter dated 14th March 201411 Ms. Lisa Francis (on
6 see Lisa Francis’ letter dated 17th February 2014 (p. 514 CB) and Dexter Bailey’s letter dated 10th March 2014 (p. 515CB) 7 as at 15th June 2012 at paragraph 25 of the amended statement of case p. 365 of the CB; Republic Bank’s letter dated 15th June 2012 is at p. 500 of the CB) 8 as at 30th April 2012 at paragraph 24 of the amended statement of case p. 365 of the CB; RBC’s letter dated 48th May 2012 is at p. 498 of the CB 9 by letter dated 16th March 2012, Wheeler & Co. identified that the estate owed Richie Figaro $56,000.00 (p. 502 of the CB); in Dexter Bailey’s letter dated 10th March 2014 Ms. Smith-Banfield agreed to pay 50% or $28,000.00 (p. 515 of the CB) 10 paragraph 27 of the amended statement of case (p. 365 of the CB); see letter dated 12th April 2012 (p. 505 of the CB) 11 p. 516 CB
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behalf of Mrs. Luke) proposed that the balance of $613,201.24 be
divided equally amongst Ms. Smith-Banfield, Mrs. Luke, Krissy Luke
and Kyle Luke so that Ms. Smith-Banfield will receive 25% or
$153,300.31.
[18] In his letter dated 29th April 201412 Mr. Dexter Bailey on behalf of Ms.
Smith-Banfield counter-proposed that his client receive 40% of the
balance ($245,280.50) with the remaining 60% going to Mrs. Luke
($367,920.74).
[19] In her response dated 13th June 201413, Ms. Lisa Francis counter-
proposed that 70% of the balance be paid to Mrs. Luke and 30% to Ms.
Smith-Banfield.
Submissions – Defendant
[20] The Second Named Defendant submitted that there was no agreement
between both parties to pay the deceased’s debts from the pension plan
since the Claimant’s attorney, Ms. Lisa Francis and the Second
Defendant’s former attorney, Mr. Dexter Bailey were still in the process
of making offers and counter offers as late as the 22 May 2015. From
the contents of this letter, both parties were still at the stage of
negotiations; all the terms of the offer were not agreed upon and the
Second Defendant never agreed to deduct the debts and liabilities of the
deceased from her 40 % entitlement to the pension benefit as proposed
by the Claimant.
[21] The Second Named Defendant argued that emails dated 7th July, 2014,
9th July 2014, 18th July, 2014 and 11th August 2014 revealed that the
Second Named Defendant and Mr. Bailey were still in the process of
discussing the issue regarding her 40% entitlement. In particular, by
email dated 11th August 2014 the Second Defendant specifically stated
to Mr. Bailey that she was not willing to settle for anything less than
12 p. 519 CB 13 p. 520 CB
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her 40 % entitlement to the benefit and that the estate was solely
responsible for paying off any and all debts and not the beneficiary. The
First Named Defendant contended that these statements clearly show
that there was no agreement since there was no agreement by parties
of all the terms necessary to be settled.
Analysis
Issue (a)
Whether there was an agreement between Mrs. Luke and Ms.
Smith-Banfield that the sum of $852,502.00 from the Pension
Plan will be paid to the estate to satisfy the estate’s debts and
liabilities with the balance being divided between Mrs. Luke and
Ms. Smith-Banfield as the court determines and for this
agreement to be enforced
The Correspondence between Attorneys for Claimant and Defendant
[22] By letter dated February 12, 2014 attorney for the Second Named
Defendant sought proof from the Claimant’s attorney of the outstanding
debts of the deceased in order to ‘facilitate his client’s proposal’. The
information relating to the debts of the deceased was forwarded to Mr.
Bailey, the Second Named Defendant’s attorney, by letter dated 17
February 2014. By a ‘Without Prejudice’ Letter of the 10th March 2014,
Mr. Bailey advised of his client’s proposal that the deceased’s debts be
paid from the pension plan excepting the debt to Richie Figaro and the
remainder shared equally between the Claimant and the Defendant. By
‘Without Prejudice’ correspondence of the 14th March 2014, the
Claimant’s attorney counterproposed that half of the debt due to one
Richie Figaro be deducted and that the remainder of the pension plan
be divided equally among the parties as earlier proposed by the
Claimant. By letter dated 29th April 2014 Mr. Bailey counter proposed
that after the debts of the deceased were paid that the balance be
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divided on a sixty percent to forty percent basis in favour of his client.
There was a further counterproposal of the 13th June 2014 from the
Claimant’s attorney that the Claimant be paid seventy percent of the
remainder and the Defendant thirty percent after all the debts of the
deceased had been settled.
[23] Subsequent to the correspondence above, there appears to have been a
breakdown in relationship between the Defendant and her attorneys at
law in that from or about July 2014 she began to question his advice
with respect to the settlement of the matter. Indeed by email dated
August 11th 2014 she denied ever consenting to payment of the
deceased’s debts from the pension plan monies in respect of which she
had been the nominated beneficiary of forty percent amounting to
$598,692.69.
Cross examination
[24] I note that in cross examination, the Second Named Defendant
admitted that her former attorney, Dexter Bailey, discussed with her
the proposal to pay the estate’s debts and liabilities from the pension
plan benefits although she said it was only on one occasion in 2014.
She also admitted to being aware of the contents of a letter dated 12th
February 2014 from her attorney to the Claimant’s attorney requesting
proof of the alleged debts of the deceased; however, she denied giving
him instructions to issue that letter. She also admitted receiving from
Mr. Bailey the documents relating to the debts of the deceased which
had been sent by the Claimant’s attorneys. She later still asserted that
she did not know of the correspondence or received copies of the letters
until August 2014.
[25] In relation to Dexter Bailey’s letter dated 10th March 2014 advising of
her agreement for the estate’s debts and liabilities to be paid from the
benefits of the Pension Plan, Ms. Smith-Banfield said that she first saw
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the letter on or around 13th August 201414. She also stated that she
never gave Dexter Bailey instructions to send that letter15.
[26] Ms. Smith-Banfield admitted, however, seeing Ms. Lisa Francis’
response dated 14th March 201416 counter-proposing (in relation to the
estate’s debt of $56,000.00 to Ritchie Figaro) that Mrs. Luke will accept
that $28,000.00 be deducted from the benefits of the Pension Plan17.
[27] Ms. Smith-Banfield also admitted seeing Dexter Bailey’s response dated
29th April 201418 accepting Mrs. Luke’s proposal but maintained that
she gave him no instructions to make this counter-proposal19.
[28] It was put to Ms. Smith-Banfield that while she agreed for the estate’s
debts and liabilities of $852,502.00 to be paid from benefits of the
Pension Plan, there was no agreement between the parties as to how
the balance of the proceeds of the Pension Plan in the sum of
$613,201.24 would be distributed. Ms. Smith-Banfield agreed that
there was no agreement in relation to the balance20.
[29] Initially the Second Named Defendant stated that she ‘probably’ sent
the email dated 7 July 2014 to her attorney but later agreed that she
did send it and that it referred to proposals that were ongoing or being
exchanged between her and Mrs. Luke21. She insisted, however, that
she had used the wrong word in that email (verbal agreements) and
what she meant was verbal discussions22. She agreed, however, that
there was a big difference between agreement and discussion and that
as a used car salesperson she was familiar with the distinction. Indeed,
14 Appendix A p. 47 lines 18-19 15 Appendix A p. 48 lines 3-4 16 p. 516 CB 17 Appendix A p. 48 lines 12-40; p. 49 lines 1-6 18 p. 517 CB 19 Appendix A p. 49 lines 22-25 20 Appendix A p. 54 lines 14-24 21 Appendix A p. 61 lines 4-8 22 Appendix A p. 61 lines 9-40; p. 62 lines 1-20
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Mrs. Smith-Banfield went on to state that while a discussion is
speculative, neither fixed nor conclusive, an agreement is conclusive23.
[30] In relation to her other emails to Dexter Bailey in which she was
challenging his interpretation of the Pension Plan, Ms. Smith-Banfield
admitted (notwithstanding that Dexter Bailey was her attorney) that she
did consult with another attorney24; she was then confronted with
Dexter Bailey’s email sent on 15th July 2014 to her25 which she recalled
receiving. The First Named Defendant accepted that Mr. Bailey was
referring to the second part of the Claimant’s proposal which related to
the division of the proceeds of the pension plan after the deduction of
the deceased’s debts.
[31] Ms. Smith-Banfield also recalled sending Dexter Bailey an email on 18th
July 201426 to let him know that she had full confidence in him; she
agreed that this was her position at that date. She, however, stated that
she lost confidence in her attorney in August 2014 when she received
the correspondence between himself and Ms. Francis relating to the
subject matter of the distribution of the proceeds of the pension plan.
Ms. Smith-Banfield, however, could not explain the delay of over 8
months in retaining new attorneys to replace Dexter Bailey27 after she
lost confidence in him. Moreover, she initially denied questioning
Dexter Bailey’s competence although when confronted with paragraph
29 of her amended defence she agreed that she did28.
[32] Ms. Smith-Banfield also admitted that (including her present attorneys
- Sheldon Prescott, Kissoonlal Sinanan and Kevin Lewis) she has
retained seven attorneys at law to represent her in this matter;
23 Notes of Evidence pgs. 62 lines 21-30 24 Appendix A p. 64 line 39; p. 65 lines 1-8 25 B-7; p. 539, CB 26 B-7; p. 539 CB 27 p. 139, Trial Bundle 2; the notice of change was field on 30th January 2015 28 Appendix A p. 73 lines 1-39; p. 74 lines 1-32
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previously she had retained Mr. Quincy Marshall, Mr. Subero, Mr.
Ramnanan and then Mr. Dexter Bailey29.
[33] It was put to Ms. Smith-Banfield that she changed Dexter Bailey as her
attorney not because he acted outside of her instructions but because
she was unhappy with his advice30; she denied this but admitted that
she had changed him after she had consulted new attorneys. The First
Named Defendant later said that she changed her previous attorneys
for personal reasons and that she preferred not to divulge the reasons31.
She disclosed in cross-examination that she had confidence in all of her
previous attorneys ‘until they mess up’32 and that Dexter Bailey messed
up because he was not doing what she wanted.
[34] By email dated 7th July 2014 from the First Named Defendant to her
attorneys she informed him that,
“I want to let you know that I have thought about my court
matter over and over and my final decision is that I am
settling for forty (40) percent, nothing less. That figure
represents the amount that was left for me by the late
Trevor Simeon Luke. Please disregard any previous verbal
agreements.
Joy Smith”33
[35] This email supports the Claimant’s contention that there had been an
agreement between the parties with respect to payment of the
deceased’s debts. The fact that the Second Named Defendant referred
to the agreement as verbal does not take away from its efficacy. In the
context of the relationship between attorney and client, once she issued
instructions to him with respect to the disposition of her case and he
29 Appendix A-9940 lines 37-40; p. 41 lines 1-11 30 Appendix A p. 83 lines 36-39 31 Appendix A p. 76 lines 21-35 32 Appendix A p. 80 lines 30-34 33 p. 531 Trial Bundle
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reduced those instructions into writing and communicated them to the
Claimant, and the Claimant accepted the offer then a binding
agreement would have been formed between the Claimant and
Defendant on the proposal. The Defendant cannot, after the fact, seek
to renege on what was agreed to by describing such agreement as a
verbal agreement. I am of the view that upon a perusal of the
correspondence between the parties’ attorneys that there was an
agreement between the Claimant and the Second Named Defendant,
that the deceased’s debts be paid from the pension plan and that the
balance be divided between them. There was no agreement with respect
to how the balance was to have been divided; I will return to this issue
later.
[36] Significantly, the Defendant was in court on the occasions when the
matter had been adjourned pending settlement. Her evidence was
conflicting on the issue of whether she had been aware that the matter
had been repeatedly adjourned to facilitate settlement discussions
between the parties. At first she stated that she could not recall this but
later admitted that she was aware that the matter had been adjourned
pending settlement discussions but she did not challenge her attorney
notwithstanding her claim that she had not given him any instructions
to settle the matter.
[37] I also noted the vacillation in her evidence with respect to whether her
relationship with the deceased was a platonic or a romantic one:
a) The First Named Defendant pleaded in her amended defence34
that her relationship with the deceased was platonic and that she
gave him lodging as a good friend;
b) in her witness statement35 she implied that she and the deceased
had a romantic relationship:-
34 Paras 8, 10 Amended Defence 35 Para 3
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“from 22.10.10 to his death…he would
visit her home every day and they
became very close and thereafter he
started spending most of his nights at
my home”
c) he proposed to her on her birthday (28th January 2012) but they
could not be married since he was going through a divorce36;
d) the deceased’s nomination of beneficiary form where he said she
was a cohabitee37; and
e) her evidence that on 31st January 2012 she bought him a
Sunborn watch at Zina’s Jewelry Store in Westmoorings38.
In cross examination Ms. Smith-Banfield maintained that she was a
very good friend with the deceased and that he lived with her but as a
friend39.
[38] My assessment of the Second Named Defendant’s evidence as a whole
led me to the conclusion that she was neither reliable nor credit-worthy.
This was due in no small part to her inconsistent and at times
incredulous evidence on material aspects of her case. I did not believe
her when she stated that she did not give Mr. Bailey instructions to
settle the matter by agreeing to pay the debts of the deceased’s estate
from the pension plan or that she was unaware of the ongoing
discussions and proposals between her attorney and the Claimant’s
attorney.
[39] In assessing the Second Named Defendant’s case as a whole I had
regard to the fact of her failure to call Mr. Bailey, her former attorney,
to give evidence in the case. The central issue for determination was
whether there had been a valid agreement between the Claimant and
36 paragraph 9 of her witness statement; p. 2 of Vol. 2 37 p. 72 CB 38 paragraph 4 of her witness statement; p. 2 of Vol. 2; Appendix A p. 35 lines 27-37 39 Appendix A p. 34 lines 14-39
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Defendant that the deceased’s debts would be paid from the pension
plan. The attorneys for the parties, when acting on the parties’
instructions are their agents. If, as Mrs. Smith-Banfield contends in
this case, Mr. Bailey was not acting as her agent and pursuant to her
instructions when he entered into discussions with the Claimant for the
settlement of the claim, then the onus fell on her to put that evidence
before the court. Mr. Bailey, having put himself on record for her and
appeared on her behalf during the course of the matter, a prima facie
case arises that he was her attorney and agent. Further, the Claimant
having raised a prima facie case through her pleadings and evidence
that Mr. Bailey, acting on behalf of the Defendant, agreed to the
payment of the deceased’s debts from the pension plan, the onus fell on
the Defendant to displace the prima facie case by adducing evidence to
the contrary. One way in which the Defendant could have done so was
by issuing a subpoena to have Mr. Bailey testify in relation to the
instructions which he claimed to have received from her in order to
settle the matter. Her failure to call Mr. Bailey to testify in this case
caused me to draw an adverse inference against her – that if called he
would not support her case that she had not given him any such
instructions. Mrs. Smith-Banfield gave no explanation as to why Mr.
Bailey, an attorney at law in practice, had not been called to give
evidence on this vital issue. In the circumstances I draw the inference
that had Mr. Bailey been called he would not have supported the
Second Named Defendant’s case that she had not agreed to settle the
claim.
[40] The Second Named Defendant’s agreement to pay the deceased’s debts
and apportion the remainder of the proceeds of the pension plan
between herself and the Claimant amounts to a forbearance of her right
to continue the claim and is good consideration for the agreement
between herself and the Claimant.
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Without Prejudice Communication
[41] While without prejudice documents are ordinarily inadmissible as
evidence, they may be admitted in the special circumstances identified
in Oceanbulk Shipping and Trading SA v TMT Asia Ltd and Ors40:-
(1) …when the issue is whether without prejudice
communications have resulted in a concluded
compromise agreement, those communications are
admissible….
(2) Evidence of the negotiations is also admissible to
show that an agreement apparently concluded
between the parties during the negotiations should
be set aside on the ground of misrepresentation,
fraud or undue influence. Underwood v Cox (1912) 4
DLR 66, a decision from Ontario, is a striking
illustration of this.
(3) Even if there is no concluded compromise, a clear
statement which is made by one party to negotiations
and on which the other party is intended to act and
does in fact act may be admissible as giving rise to
an estoppel. That was the view of Neuberger J in
Hodgkinson & Corby Ltd v Wards Mobility Services
[1997] FSR 178, 191 and his view on that point was
not disapproved by this court on appeal.
(4) Apart from any concluded contract or estoppel, one
party may be allowed to give evidence of what the
other said or wrote in without prejudice negotiations
if the exclusion of the evidence would act as a cloak
for perjury, blackmail or other unambiguous
impropriety….But this court has, in Forster v
40 [2010] UKSC 44 at pp 1435 and 1436 (paragraph 32)
16
Friedland (unreported) 10 November 1992; CA
Transcript No 1052 of 1992 and Fazil-Alizadeh v
Nikbin (unreported) 25 February 1993; CA Transcript
No 205 of 1993, warned that the exception should be
applied only in the clearest cases of abuse of a
privileged occasion.
(5) Evidence of negotiations may be given (for instance,
on an application to strike out proceedings for want
of prosecution) in order to explain delay or apparent
acquiescence.
(6) In Muller’s case (which was a decision on discovery,
not admissibility) one of the issues between the
claimant and the defendants, his former solicitors,
was whether the claimant had acted reasonably to
mitigate his loss in his conduct and conclusion of
negotiations for the compromise of proceedings
brought by him against a software company and its
other shareholders. Hoffmann LJ treated that issue
as one unconnected with the truth or falsity of
anything stated in the negotiations, and as therefore
falling outside the principle of public policy protecting
without prejudice communications. The other
members of the court agreed but would also have
based their decision on waiver.
(7) The exception (or apparent exception) for an offer
expressly made without prejudice except as to costs
was clearly recognised by this court in Cutts v Head,
and by the House of Lords in Rush & Tompkins, as
based on an express or implied agreement between
the parties; and
17
(8) In matrimonial cases there has developed what is
now a distinct privilege extending to communications
received in confidence with a view to matrimonial
conciliation….”
[42] The Without Prejudice communication between the parties is
admissible to show that there was in fact an intention settle this claim
and that in fact there was a concluded compromise agreement with
respect to the payment of the deceased’s debts in the $852,502.00.
[43] Furthermore, all the elements of a contract exist in relation to the
compromise agreement in that there is:
i. consideration (forebearance on the First Named Defendant’s part
to pursue a claim for 40% of the pension plan);
ii. the parties intended legal relations;
iii. an agreement with respect to the payment of debts
iv. the terms of such agreement are clear.
I therefore hold that there was a concluded agreement between Mrs.
Luke and Mrs. Smith-Banfield that the sum of $852,502.00 will be paid
from the pension plan in satisfaction of the estate’s debts, and that the
balance of the pension plan’s benefits would be divided between them.
Issue (b)
Whether Mrs. Luke is entitled to reasonable provision pursuant to
Sections 95 and 96 of the Succession Act Chapter 9:02 and
whether reasonable provision should be made for her benefit from
the benefits of the Pension Plan
Submissions - Claimant
[44] The Claimant contended, alternatively to the Compromise Issue, that
she is entitled to a declaration pursuant to Section 95 and 96 of the
Succession Act Chapter 9:02 that the disposition of the deceased’s
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estate effected by the law relating to intestacy is not such as to make
reasonable financial provision for her and for the payment of the
estate’s debts and liabilities; she sought an order that forty percent of
the Pension Plan benefits be, instead, paid to the estate for distribution
in accordance with the law of intestacy.
[45] The Claimant submitted that she is entitled to an order for reasonable
provisions taking into account the following factors:
a) She is an elderly woman who is unemployed with little or
no prospect of improving her financial situation because of
her diagnosis of cervical spondylosis. The deceased had full
knowledge of Mrs. Luke’s ailments as she was diagnosed
during his lifetime;
b) She now suffers from vertigo, carpel tunnel syndrome,
cervical spondylosis and high cholesterol; the vertigo
causes acute pains in her neck and spine which is
aggravated by stress and is likely to intensify as she gets
older. In 2009 she underwent surgery to her left hand
because of the carpel tunnel syndrome;
c) the marriage between the Claimant and the deceased lasted
about 31 years; after the marriage on 19th April 1980 she
was employed as a cashier at Kirpalani’s and then in 1983
she started working at Capital Insurance Limited until her
resignation because of ill health, in December 2004 as
insurance managing clerk;
d) in February 2011 after 31 years of marriage the deceased
left the matrimonial home to live in an adulterous
relationship which began in 2010;
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e) at the date of death, the deceased had incurred debts and
liabilities exceeding $900,000.00 which was left for his
estate to pay;
f) Mrs. Luke is only entitled to 50% of the estate with the
remaining 50% to be shared with Krissy Luke and Kyle
Luke;
g) Ms. Smith-Banfield, on her evidence, merely had a platonic
relationship with the deceased over a two (2) year period
and is self employed as a sales representative and lives in
her own home; even if the relationship was a romantic one
it was brief;
h) Mrs. Luke relies on financial support from her son Kyle who
is employed part time as a counter clerk and who is
pursuing a degree in petroleum engineering from the UTT;
Mrs. Luke’s average monthly expenses is approximately
$6,678.00 of which $4,000.00 is referable to monthly rent
for the rented home; and
i) the deceased was earning approximately $15,000.00 per
month as an internal auditor at Petrotrin and upon his
retirement on 31st January 2014 received an ex gratia
benefit of $643,775.96 and a monthly pension of
$8,646.25.
Submissions – First Named Defendant
[46] The Second Named Defendant submitted that the said nomination of
the beneficiary under the pension benefit was not made pursuant to
statute or any Act of Parliament; it cannot therefore be treated as
forming part of the net estate. She submitted further that Section
20
102(2) of the Succession Act Cap 9:02 is not applicable since the
deceased did not have a proprietary interest in the pension benefit nor
did he have any power to dispose of same.
[47] It was contended by the Second Named Defendant that she would be
entitled to her forty percent share of the pension fund since the
deceased retained no proprietary interest in the benefits but only
certain rights such as the appointing of a beneficiary which he rightfully
exercised. In the circumstances the pension benefit did not form part
of the net estate as contemplated by Section 94 of the Succession Act
Chap 9:02.
[48] The Second Named Defendant argued that pursuant to Sections 95
and 96 of the Succession Act, the Claimant must first establish that
the benefits in the Pension Plan falls within the definition of net estate
of the deceased as defined in Section 94(1) of the Succession Act41.
[49] Ms. Smith-Banfield submitted that the Pension Plan benefits does not
form part of the deceased’s net estate as contemplated by section 94 of
the Succession Act and ipso facto the court has no power to make an
order for reasonable provisions in favour of Mrs. Luke out of the Pension
Plan benefits. The Second Named Defendant relied upon the case of
Luvina Baird v Dickson Baird42 in support of her submission.
Analysis
[50] Section 95.1 of the Succession Act states:
“Where after the commencement of this Act a person dies
domiciled in the State or dies outside the State leaving any
41 paragraph 4.1 of Ms. Smith-Bansfield submissions filed on 26th February 2018 42 [1990] 2 AC 548
21
estate in the State and is survived by any of the following
persons: (a) the spouse of the deceased;… that person may
apply to the Court for an order under section 96 on the
ground that the disposition of the deceased’s estate
effected by his Will or the law relating to intestacy, or the
combination of his Will and that law, is not such as to make
reasonable financial provision for the applicant.”
[51] Section 96 of the Succession Act states:
“Subject to the provisions of this Part, where an application
is made for an order under this section, the Court may, if it
is satisfied that the disposition of the deceased’s estate
effected by his Will or the law relating to intestacy, or the
combination of his Will and that law, is not such as to make
reasonable financial provision for the applicant, make any
one or more of the following orders:
(a) an order for the making to the applicant out of the net
estate of the deceased of such periodical payments and for
such term as may be specified in the order;
(b) an order for the payment to the applicant out of that
estate of a lump sum of such amount as may be so
specified;
(c) an order for the transfer to the applicant of such property
comprised in that estate as may be so specified;
(d) an order for the settlement for the benefit of the applicant
of such property comprised in that estate as may be so
specified;
(e) an order for the acquisition out of property comprised in
that estate of such property as may be so specified and for
22
the transfer of the property so acquired to the applicant or
for the settlement thereof for his benefit;
(f) an order varying any ante-nuptial or post-nuptial
settlement (including such a settlement made by Will) made
on the parties to a marriage to which the deceased was one
of the parties, the variation being for the benefit of the
surviving party to that marriage, or any child of that
marriage, or any person who was treated by the deceased
as a child of the family in relation to that marriage.
(2) An order under subsection
(1)(a) providing for the making out of the net estate of the
deceased of periodical payments may provide for
payments— (a) of such amount as may be specified in the
order;
(b) equal to the whole of the income of the net estate or of
such portion thereof as may be so specified;
(c) equal to the whole of the income of such part of the net
estate as the Court may direct to be set aside or
appropriated for the making out of the income thereof of
payments under this section, or may provide for the amount
of the payments or any of them to be determined in any
other way the Court thinks fit.
(3) Where an order under subsection
(1)(a) provides for the making of payments of an amount
specified in the order, the order may direct that such part of
the net estate as may be so specified shall be set aside or
appropriated for the making out of the income thereof of
those payments; but no larger part of the net estate shall
be so set aside or apportioned than is sufficient, at the date
23
of the order, to produce by the income thereof the amount
required for the making of those payments.
(4) An order under this section may contain such
consequential and supplemental provisions as the Court
thinks necessary or expedient for the purpose of giving
effect to the order or for the purpose of securing that the
order operates fairly as between one beneficiary of the
estate of the deceased and another and may, in particular,
but without prejudice to the generality of this subsection—
(a) order any person who holds any property which forms
part of the net estate of the deceased to make such payment
or transfer such property as may be specified in the order;
(b) vary the disposition of the deceased’s estate effected by
the Will or the law relating to intestacy, or by both the Will
and the law relating to intestacy, in such manner as the
Court thinks fair and reasonable having regard to the
provisions of the order and all the circumstances of the
case;
(c) confer on the trustees of any property which is the
subject of an order under this section such powers as
appear to the Court to be necessary or expedient.”
[52] Section 102.1 of the Succession Act provides:
“Where a deceased person has in accordance with the
provisions of any enactment nominated any person to
receive any sum of money or other property on his death
and that nomination is in force at the time of his death, the
sum of money, or that other property, to the extent of the
value thereof at the date of the death of the deceased shall
be treated for the purposes of this Part as part of the net
24
estate of the deceased; but this subsection does not render
any person liable for having paid that sum or transferred
that other property to the person named in the nomination
in accordance with the directions given in the nomination.”
[53] In the Privy Council case of Baird v Baird43, the deceased was employed
by Texaco, a Trinidad oil company, which provided a contributory
pension scheme for its employees. Under art XIII of the scheme, an
employee was entitled to nominate a beneficiary who would be entitled
to the benefits payable if the employee died while still in the company’s
employment, but if no beneficiary was nominated then the benefits
would be payable to the employee’s widow or to his estate. The deceased
however nominated his brother as his named beneficiary by signing the
relevant form supplied by the company and when he died his widow
and brother both claimed the ‘death-in-employment’ benefit. The judge
held that the brother would be entitled to the benefit. The widow
thereafter appealed to the Court of Appeal which dismissed her appeal.
The widow appealed to the Privy Council contending that the benefit
was a testamentary disposition which was only valid if it was executed
with the formalities required for a will. It was held that “a power under
a contributory pension scheme to appoint a non-assignable ‘death-in-
employment’ benefit subject to the prior approval of the trustees or
management committee of the scheme was in essence no different from
any other power of appointment and therefore did not have to be
executed as if it was a will since it disposed of no property of the
appointer because the employee retained no proprietary interest in his
contributions but received instead, certain rights, including the right to
appoint interests in the scheme to take effect on the occurrence of
specified contingencies.
43 [1990] 2 All ER 300
25
[54] In the case of Re Cairnes (Deceased) Howard v Cairnes [1982] the
deceased was employed as a baggage-handler at TWA airlines which
offered its employers a pension scheme that required a trust-deed to be
drawn up; the appointment of trustees and the drafting of life assurance
scheme rules. The deceased was required to nominate a beneficiary to
whom the death benefit should be paid within designated classes: (a)
the members wife or (b) any person who was immediately prior to the
member’s death either in receipt of any regular weekly or monthly
voluntary payment from the member or who was wholly or partly a
dependent on the member for the ordinary necessaries of life. The
deceased with the consent of the company nominated his wife as the
beneficiary. The deceased and his wife divorced in 1976 and he
subsequently lived with both the Plaintiff and his former wife for varying
periods and made voluntary weekly payments towards his former wife’s
household expenses. He subsequently died in 1980 and the Plaintiff
applied for an order under the Inheritance (Provision for Family and
Dependants) Act 1975 and contended that the value of the estate was
small apart from the death benefit provided by the pension scheme. The
Plaintiff also contended that the time for determining whether a
beneficiary fell within a designated class was at the time of death and
not at the time of nomination and since the deceased and his wife were
divorced at the time of death the nomination would be ineffective and
the benefit would fall into the residue of the estate; and that the death
benefit was part of the net estate according to the Act. It was held that
the benefit does not form part of the net estate as defined in section
25(1) (a) of the 1975 Act (property which the deceased had the power to
dispose of by Will) because his power to dispose of the benefit was
strictly circumscribed: he had no power to dispose of the moneys, they
were funds accumulated and which became payable by the trustees
upon his death, and the nomination of a beneficiary required the
consent of the company. It was also held that the benefit does not form
part of the net estate as defined in section 25(1) (c) of the 1975 Act
(money or property treated as part of the net estate by virtue of section
26
8 (1) of the Act) because section 8 (1) referred to money or property
which a deceased had nominated any person to receive ‘in accordance
with the provisions of any enactment’ and the pension scheme was not
an enactment and the nomination was not made in accordance with the
provisions of any statute or any Act of Parliament and accordingly the
death benefit does not fall into the residue of the net estate.
[55] I agree with the Claimant’s submission that the cases of Baird and
Carines are distinguishable from the facts of this case in that the
pension rules and trust deed in relation to the pension fund were
adduced in evidence in those cases. No evidence relating to the Petrotrin
Pension Fund was placed before this court in order to determine
whether the deceased’s pension formed part of his net estate or whether
it took effect under the trust deed and rules.
[56] I therefore hold that the balance of the pension plan amounting to
$613,201.24 after the debts of the deceased estate have been paid forms
part of the net estate of the deceased.
[57] In any event I have already concluded that there existed a compromise
agreement between the parties with respect to the payment of the
deceased debts in the sum of $852,502.00 from the pension plan.
[58] The test of reasonable provisions is an objective one. Wynn-Parry J in
Re Inns44 in construing provisions that mirror those of the Sections
95 and 96 of the Succession Act held that:
“… no man could be compelled to leave any part of his estate to any
person, who under the Act is a dependent…The Act is not designed to
bring about any compulsion. It proceeds upon the postulate that a
testator should be capable, having regards to all the circumstances, of
being regarded by the court as reasonable.”
44 [1947] Ch. 576
27
[59] With respect to the balance of $613,201.24 no agreement had been
arrived at between the parties as to its distribution. In the last
correspondence exchanged between them the Second Named Defendant
had demanded seventy percent of the balance of the pension fund with
thirty percent being paid to the Claimant. In all the circumstances of
the case, taking into account the following factors:
a) Mrs. Luke is an elderly woman who is unemployed with little or
no prospect of improving her financial situation because of her
diagnosis of cervical spondylosis. The deceased had full
knowledge of Mrs. Luke’s ailments as she was diagnosed during
his lifetime;
b) Mrs. Luke now suffers from vertigo, carpel tunnel
syndrome, cervical spondylosis and high cholesterol; the
vertigo causes acute pains in her neck and spine which is
aggravated by stress and is likely to intensify as she gets
older. In 2009 she underwent surgery to her left hand
because of the carpel tunnel syndrome;
c) the marriage between Mrs. Luke and the deceased lasted
about 31 years; after the marriage on 19th April 1980 she
was employed as a cashier at Kirpalani’s and then in 1983
she started working at Capital Insurance Limited until her
resignation, because of ill health, in December 2004 as
insurance managing clerk;
d) in February 2011 after 31 years of marriage the deceased
left the matrimonial home to live in an adulterous
relationship which began in 2010;
e) at the date of death, the deceased had incurred debts and
liabilities exceeding $900,000.00 which was left for his
estate to pay;
28
f) Mrs. Luke is only entitled to 50% of the estate with the
remaining 50% to be shared with Krissy Luke and Kyle
Luke;
g) Ms. Smith-Banfield on her evidence merely had a platonic
relationship with the deceased over a two (2) year period
and is self employed as a sales representative and lives in
her own home; even if they enjoyed a romantic relationship
it was very brief;
h) Mrs. Luke relies on financial support from Kyle who is
employed part time as a counter clerk and who is pursuing
a degree in petroleum engineering from the UTT; Mrs.
Luke’s average monthly expenses is approximately
$6,678.00 of which $4,000.00 is paid as monthly rent for
her home; and
i) the deceased was earning approximately $15,000.00 per
month as an internal auditor at Petrotrin and upon his
retirement on 31st January 2014 received an ex gratia
benefit of $643,775.96 and a monthly pension of
$8,646.25.
Conclusion
[60] I therefore Order:
i. The Third Named Defendant pay to the Legal Personal
Representative of the estate of the deceased the sum of
$852,502.00 from the pension plan in satisfaction of the estate’s
debts and liabilities;
29
ii. The Third Named Defendant pay to the Legal Personal
Representative of the estate of the deceased 70% of the balance
of the pension fund ($613,204.24) in the sum of $429,242.96;
iii. That the Third Named Defendant pay to the Second Named
Defendant the sum of $183,961.27 representing thirty percent of
$613,204.24;
iv. The Second Named Defendant to pay to the Claimant one-half of
the Claimant’s prescribed costs on the sum of $429,242.96.
Joan Charles Judge